A deadlocked jury favors the disgraced former governor, though one former federal prosecutor says it's not over till it's over

August 14, 2010|By Stacy St. Clair and Jeff Coen, Tribune reporters

There were times this summer when it seemed the evidence in his corruption trial might sweep away Rod Blagojevich, a former governor who was captured on a mountain of audio recordings allegedly plotting to sell the powers of his office while trying to land something like an ambassadorship to India for his trouble.

But not so fast.

Screaming headlines about accusations leveled at Blagojevich from the witness stand by his former aides have been replaced by news that jurors who sat through the trial may not be able to decide on most of the 24 counts in the indictment.

The jury of six men and six women sent a note to U.S. District Judge James Zagel on Thursday, saying they could decide on only two of the charges against Blagojevich and his brother, Robert Blagojevich. The panel said it could not reach a verdict on 11 others and hadn't even deliberated on another 11 counts.

It's too early to know exactly what that means. Many experts and veteran Chicago lawyers said it could signal that the divided panel is unlikely to convict Blagojevich on the most serious charges such as racketeering, and that the case is headed for a retrial. But others suggest it's not too late for things to swing in prosecutors' favor.

But at least at this point, lawyers for the former governor have done enough to create a significant rift in the jury. With the reading of a single jury note, they have gone from appearing somewhat overmatched to looking like plucky street fighters.

"The defense should be patting itself on the back," said Thaddeus Hoffmeister, a law professor at the University of Dayton. "The prosecution will consider this a loss. I'm sure they're reviewing the case right now and perhaps rethinking their strategy."

Experts predict that as the government awaits the verdict, prosecutors already are trying to identify the flaws in a case that once looked like a rout and figure out how to remedy them in a retrial, should one be necessary.

That decision obviously will depend on how many counts — if any — Blagojevich is convicted of and the potential penalty he faces. Many of the counts in the indictment carry statutory sentences of up to 20 years in prison, while a few carry five years.

The U.S. attorney's office has been mum since the jury disclosed its divide, but the deadlock must sting prosecutors who have spent much of the last six years building the case against Blagojevich. Still,

most observers agree that if the former governor dodges a conviction on the most serious counts, prosecutors will be loath to abandon a case that featured the arrest of a sitting governor at his home and the stunning accusation that he tried to auction off a U.S. Senate seat vacated by President Barack Obama.

Most experts said a plea bargain also would appear to be out of the picture.

"Obviously, the government is not going to walk away from this, and they're not going to offer him anything," said former federal prosecutor Joel Bertocchi. "I don't see any way for Blagojevich to use a mistrial to get a deal — or at least not a deal that he would accept."

Jeffrey Cramer, a former federal prosecutor who heads the Chicago office of the investigation firm Kroll, said the jury's final decision needs to be known before the next step in the case becomes clear.

If the jury convicts Blagojevich on a substantive charge that carries a significant prison sentence, it's possible that prosecutors would accept the decision and proceed to sentencing, where all the other evidence presented during the trial would be considered aggravating factors in meting out his punishment, Cramer said.

"All that conduct would be considered, and that might be enough for the government," he said.

Criminal-defense attorney Joseph Lopez, who has had six federal cases end in hung juries, said he expects the government to announce its plan to retry Blagojevich almost immediately if things don't go its way.

And a second go-round would include new witnesses, new evidence and a new strategy, some experts said. It's possible the government, which opted to streamline its case for the trial, would call Blagojevich fundraiser Antoin "Tony" Rezko and other witnesses despite drawbacks that kept them off the stand.

"The prosecutors are going to figure out their weaknesses, and they're going to figure out a way to get around them," Lopez said. "They'll do it a totally different way."

But before the government would revamp its case, Cramer said, prosecutors would consider the vote breakdown in the jury room.

"If it's 11-1 in favor of conviction, they're not going to change much," he said. "If it's 11-1 in favor of acquitting, they'll rethink some things."